By August 2024, 68 war crimes proceedings were conducted and finalised before the Higher Court in Belgrade as a court of first instance and the Court of Appeal in Belgrade as a court of second instance. In these proceedings, 95 persons were sentenced to prison terms ranging from one to twenty years for war crimes against civilians and war crimes against prisoners of war. The purpose of war crimes trials is to establish a complete factual picture in order to individualise the guilt of persons charged with criminal offences, adequately punish those found guilty, and achieve justice for victims. Therefore, identifying aggravating and mitigating circumstances for deciding the length of prison sentences proves to be particularly significant.
The Humanitarian Law Center (HLC) has been monitoring all war crimes trials since the War Crimes Department at the Higher and Appellate Court in Belgrade began working and in its long-standing practice has identified numerous deficiencies in the application of aggravating and mitigating circumstances when measuring sentences. In addition, the HLC also noted shortcomings in the application of the institute of mitigation of punishment, the perceptibility of the criteria for deciding terms of imprisonment when concluding plea agreements, and the application of the standards established by the International Criminal Tribunal for the former Yugoslavia (ICTY) when deciding on sentences.
Policy paper: Application of aggravating and mitigating circumstances in war crimes trials highlights these shortcomings and offers recommendations for improving sentencing in war crimes proceedings in the future. With an overview of ICTY practice, this publication provides detailed insight into the application of aggravating and mitigating circumstances in war crimes trials in Serbia. Finally, in the recommendations, the HLC advocates for the need for the courts to explain their decisions in detail and for the institute of mitigation to be applied only exceptionally; it also asks that family circumstances and previous non-conviction be evaluated according to their real importance. The publication also points out that the passage of time from committing a criminal act in war crimes proceedings should not be appreciated as a mitigating circumstance since these acts do not become obsolete. In conclusion, this Policy paper emphasises the necessity of paying special attention to specific and long-lasting consequences when deciding on sentences for war crimes with elements of sexual violence.
The Policy paper can be downloaded here.
